This opinion is subject to
further editing.If published, the
official version will appear in the bound volume of the Official
Reports.

A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals.SeeWis. Stat. § 808.10 and Rule 809.62.

Appeal No.

2012AP1482

Cir. Ct. No.2011CV2591

STATE OF WISCONSIN

IN COURT OF
APPEALS

DISTRICT II

Scott P. Mattfeld and Shelley Mattfeld,

Plaintiffs-Appellants,

v.

PHH Mortgage Corporation,

Defendant-Respondent.

APPEAL
from a judgment and an order of the circuit court for Waukesha County:J. MAC
DAVIS, Judge.Affirmed.

Before Curley, P.J., Kessler and Brennan, JJ.

¶1PER CURIAM. Scott P. and Shelley[1]
Mattfeld appeal from a judgment and order[2]
denying their motion for summary judgment and granting summary judgment to PHH
Mortgage Company (PHH), thereby dismissing the Mattfelds’ claims.The Mattfelds contend that PHH violated its statutory
obligation under Wis. Stat. § 138.052(7s)(a)
(2011-12)[3]
to timely supply them with the payoff amount for their mortgage.The Mattfelds also believe that PHH violated
an implied contractual duty of good faith and fair dealing.We conclude that § 138.052(7s)(a) is
unambiguous and does not require what the Mattfelds claim and, further, there
was no contractual obligation that PHH breached.The circuit court’s grant of summary judgment
to PHH was therefore appropriate, so we affirm.

Background

¶2The Mattfelds owned a home in Menomonee Falls, subject to two
mortgages.PHH held the first
mortgage.The Mattfelds found a prospective
buyer for the home and hoped to close the sale on January 8, 2009.On December 29, 2008, Brenda Haas of
Shorewest Realty sent a fax to PHH, requesting PHH email or fax her the payoff
amount for the first mortgage.On January
5, 2009, Haas emailed PHH’s attorney, Brent Nistler, with the same request,
though in this correspondence, she indicated that she expected a $68,000
shortfall after the sale.

¶3Nistler responded on January 6, 2009, and informed Haas that
in order for the Mattfelds to be considered for what was evidently going to be a
short sale, they would have to go through PHH’s loss mitigation
department.Several emails between Haas
and Nistler were exchanged.[4]Haas ultimately indicated that the Mattfelds
would have to go through the short sale process.

¶4Because of repeated delays in closing, the prospective
purchaser exercised his right to cancel the sale contract on March 19, 2009. On March 31, 2009, PHH mailed the Mattfelds a
notice of their mortgage payoff amount.

¶5Scott Mattfeld commenced the underlying action against PHH
for damages from the lost sale.He
alleged that PHH failed to comply with Wis.
Stat. § 138.052(7s) by failing to provide, within fifteen days of
the January 5, 2009 inquiry, a response that included the Mattfelds’ payoff
amount.He also alleged that PHH breached
an “implied duty of good faith and fair dealing in the performance of the loan contract”
when it failed to timely provide such notice.

¶6Mattfeld moved for summary judgment on the statutory
claim.PHH filed a cross-motion for
summary judgment on the statutory claim and also sought summary judgment on the
contract issue.The circuit court
ultimately concluded that the email response PHH provided to Haas regarding the
short sale process was sufficient.Thus,
it denied Mattfeld’s motion for summary judgment and granted PHH’s motion on
both claims.Mattfeld’s reconsideration
motion was also denied.The Mattfelds
appeal.

Discussion

I. Standards
of Review

¶7“We review summary judgment motions de novo, applying the
same methodology as the [circuit] court.”Brown v. Acuity, 2012 WI App 66, ¶5, 342 Wis. 2d 236, 815
N.W.2d 719.The methodology is
well-established, so we will not repeat it here.For our purposes, it suffices to say that
summary judgment is appropriate only if there is no genuine issue as to any
material fact and the moving party is entitled to judgment as a matter of
law.Seeid.That the parties filed cross-motions for
summary judgment without seriously disputing each other’s factual claims
creates a practical effect of stipulated facts.SeeSelzer v. Brunsell Bros., Ltd.,
2002 WI App 232, ¶11, 257 Wis. 2d 809, 652 N.W.2d 806.

¶8The main issue on appeal is the interpretation and
application of Wis. Stat. § 138.052(7s)(a).Statutory interpretation is a question of law
that we review de novo.[5]See Landis v. Physicians Ins. Co. of Wis., Inc.,
2001 WI 86, ¶13, 245 Wis. 2d 1, 628 N.W.2d 893.Application of a statute to undisputed facts
is also a question of law.Id.,
¶12.

¶9“The purpose of statutory interpretation is to discern the
intent of the legislature.”Id.,
¶14.Statutory interpretation “‘begins
with the language of the statute.If the
meaning of the statute is plain, we ordinarily stop the inquiry.’”Kalal v. Circuit Ct. for Dane Cnty.,
2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110 (citation omitted).“Where statutory language is unambiguous,
there is no need to consult extrinsic sources of interpretation[.]”Id., ¶46.“[A] statute is ambiguous if it is capable of
being understood by reasonably well-informed persons in two or more
senses.”Id., ¶47.

II. The
Wis. Stat. § 138.052 Claim

¶10Wisconsin Stat. § 138.052(7s)(a)
provides, in relevant part: “A person
who receives loan or escrow payments on behalf of itself or another person
shall … [r]espond to a borrower’s inquiry within 15 days after receiving the
inquiry.”[6]On appeal, the Mattfelds contend that, under
§ 138.052(7s): (1) a response
to the borrower’s inquiry must be sent to the borrower, not an agent; (2) the
response cannot be just any response but must specifically answer the question
posed; (3) the response must be in writing and email will not suffice; and (4) the
reply must be made by mail or personal service to comply with the “delivery
requirement” of the statute.Based on
this interpretation of the statute, the Mattfelds contend that Attorney
Nistler’s emailed responses to realtor Haas, directing the Mattfelds to the
short sale process, do not suffice.Further, because they received no paper notice of their payoff amount
until March 31, 2009, the Mattfelds assert that PHH failed to fulfill its statuary
obligation to respond to the borrower within fifteen days.

A. Proper
Response Recipient

¶11The Mattfelds contend that under Wis. Stat. § 138.052(7s)(a), a response to the borrower’s
inquiry must be sent to the borrower in order to be compliant.The statute is silent regarding to whom the
response should be sent.The Mattfelds
make no compelling argument against, and we see no reason why the statute
should be read to foreclose, use of an agent.

¶12To the extent that the Mattfelds rely on the words “borrower’s inquiry”
as support for a claim that the response always must go to the borrower, they
overlook the fact that in this case, the borrower did not make the inquiry.If a borrower’s agent cannot receive the lender’s response under Wis. Stat. § 138.052(7s)(a),
neither then is the borrower’s agent authorized to make the borrower’s inquiry.Under that interpretation, we would have to conclude that the Mattfelds
made no inquiry on January 5, 2009.[7]

¶13The Mattfelds do contend that, in fact, Shelley Mattfeld made
an inquiry.They point to the December
29, 2008 fax.However, this fax was a
request by Haas, on Shorewest Realty letterhead, asking that the payoff amount
be faxed or emailed to the realtor.Shelley Mattfeld’s signature at the bottom
does not directly follow Haas’s request for information from PHH but, rather,
authorizes PHH “to release information on undersigned Seller’s accounts to Shorewest Realtors.”(Emphasis added.)

¶14We therefore see no reason why, under the language of the
statute, the law of agency, and the facts of this case, it was improper for PHH
to respond by replying to Haas rather than the Mattfelds.When an inquiry is made of the lender by someone
with the authority to make the query, it is logical for the lender to assume
that the response should be given to the person making the request.Therefore, we do not think the lender’s response
to an inquiry made by a borrower’s agent is improper simply because it is
delivered to that agent.

B. Nature
of the Response

¶15The Mattfelds also contend that a “response” must be an “in
kind” response that directly answers the inquiry posed.They argue that it makes no sense to interpret
the statute so that “any response, even an absurd or unreasonable response,
fulfills the statutory mandate.”

¶16However, this is not a case where the response was absurd or
unreasonable.For whatever reason—and
that reason appears to be Haas’s anticipation of a $68,000 shortfall—PHH
evidently concluded that no payoff amount could be determined or authorized
until the Mattfelds had discussed the pending sale with the loss mitigation
department.PHH provided an answer
addressing that reality, in effect telling the Mattfelds the next necessary
steps to take in order for PHH to ultimately calculate the payoff.We agree with the circuit court that, upon
consideration of all the circumstances, PHH’s answer was a sufficient
“response” under the statute.

C. Service
and Form Requirements

¶17Finally, the Mattfelds assert that the response cannot be
provided by email but, rather, must be in writing.They also contend that the response must be delivered
to the borrower by mail or personal service.

¶18We disagree.The language
of Wis. Stat. § 138.052(7s)(a)
is clear: “A person who receives loan or
escrow payments on behalf of itself or another person shall … [r]espond to a
borrower’s inquiry within 15 days after receiving the inquiry.”There are no requirements imposed as to form
or delivery.

¶19The Mattfelds believe, however, that Wis. Stat. § 138.052(7s) must be read in pari materia with
§ 138.052(7m).“In pari materia refers to statutes
relating to the same subject matter or having the same common purpose.”SeeGeorgina
G. v. Terry M., 184 Wis. 2d 492, 512 n.13, 516 N.W.2d 678
(1994).“‘When multiple statutes are
contained in the same chapter and assist in implementing the chapter’s goals
and policy, the statutes should be read in
pari materia and harmonized if possible.’”Id. at 512 (citation and footnote omitted).

¶20Wisconsin Stat. § 138.052(7m)
states:

(a)A lender shall notify the borrower as provided in par.
(b) if on or after May 3, 1988, the payment, collection or other loan or escrow
services related to the loan are sold or released.

(b)The notice required under par. (a) shall be in writing
and shall include the name, address and telephone number of the party to whom
servicing of the loan is sold or released. The lender shall deliver the notice to the
borrower by mail or personal service within 15 working days after servicing of
the loan is sold or released.

By reading § 138.052(7m)
and (7s) in pari materia, the
Mattfelds would transfer the “in writing” and “deliver[y]… by mail or personal
service” requirements of § 138.052(7m)(b) to the timely response requirement
of § 138.052(7s)(a).This reading
is not consistent with the in pari
materia requirement of the same subject matter.Here, the reference in subsec. (7m) is to
notice of the sale or transfer of the loan.The “timely response” reference in subsec. (7s) is to any inquiry of a
borrower.They are not the same.

¶21The only thing that Wis.
Stat. § 138.052(7m) and (7s) have in common is their placement in a
statutory section entitled “Residential mortgage loans.”(Boldface omitted.)They do not share the same subject matter: subsection (7m) details the information that a
lender must provide to the borrower if it transfers the loan to someone else,
and subsection (7s) imposes two requirements on lenders for dealing with
borrowers, regarding timely responses to inquiries and processing of certain payment
forms.Although “‘courts must not look
at a single, isolated sentence or portion of sentence, but at the role of the
relevant language in the entire statute,’” Landis, 245 Wis. 2d 1, ¶16 (citation
omitted), there is nothing special about the juxtaposition of § 138.052(7m)
and (7s) that requires us to read them together.Indeed, subsections (7m) and (7s) are no more
similar to each other than (7m) is to the preceding (7e) or (7s) is to the
following (8).[8]

¶22Even were we to subscribe to the need to apply in pari materia as a canon of construction
here, we would also have to consider that we generally presume words excluded
from a statute are excluded for a reason.That is, we generally do not construe statutes so as to add words.SeeC.
Coakley Relocation Sys., Inc. v. City of Milwaukee, 2008 WI 68, ¶24
n.10, 310 Wis. 2d 456, 750 N.W.2d 900.Thus, because “written notice” is required by multiple other sub-sections[9]
of Wis. Stat. § 138.052, but
not § 138.052(7s), we would presume that the legislature intentionally chose
not to include it in § 138.052(7s), which requires a timely response to
inquiries.Therefore, we will not read a
written notice requirement into § 138.052(7s), nor will we read in a mail
or personal service requirement.

¶23In short, Wis. Stat. § 138.052(7s)
is plain and unambiguous.[10]It prescribes no form for a response and it
imposes no “delivery requirement.” The circuit
court properly determined that PHH’s email, from counsel to the realtor, on January
6, 2009, was an appropriate and timely response under the statute, and that PHH
was entitled to summary judgment on this claim.

III. The Contract Claim

¶24The other claim against PHH was a breach of contact claim.The relevant portion of the complaint
alleged:

Defendant had an implied duty of good faith and fair
dealing in the performance of the loan contract with the plaintiff,
specifically, to timely provide plaintiff or
his representatives[[11]]
with a loan payoff.[Emphasis added.]

On appeal, the Mattfelds assert
that this duty derives from Section 8 of an adjustable rate note and from
Section 15 of the mortgage.These provisions
state, in relevant part:

8.GIVING
OF NOTICES

Unless
applicable law requires a different method, any notice that must be given to me
under this Note will be given by delivering it or by mailing it by first class
mail to me at the Property Address above or at a different address if I give
the Note Holder a notice of my different address.

….

15. Notices. All
notices given by Borrower or Lender in connection with this Security Instrument
must be in writing.Any notice to Borrower
in connection with this Security Instrument shall be deemed to have been given
to Borrower when mailed by first class mail or when actually delivered to Borrower’s
notice address if sent by other means.

However, the Mattfelds simply do
not show that confirmation of the loan payoff amount is a “notice that must be
given” under the adjustable rate note or that the payoff amount is a notice “in
connection with” the mortgage.

¶25The Mattfelds argue that “[e]very homeowner expects that their
mortgage lender will promptly cooperate in providing a loan payoff statements so
that sale or refinance of their properly will timely occur.”[12]That expectation cannot trump the
above-quoted portions of their note and mortgage.The Mattfelds have established no basis for
their breach of contract claim.Summary
judgment to PHH on the contract claim was appropriate.

By the Court.—Judgment and order
affirmed.

This
opinion shall not be published.SeeWis.
Stat. Rule 809.23(1)(b)5.

[1] Shelley
was not a party to the complaint below; she was added as a party to the appeal
by this court’s order dated August 10, 2012.

[2] The
order appealed from is dated May 24, 2012, and ordered the disposition of the
summary judgment motions.The subsequent
judgment dated June 28, 2012, confirmed dismissal of the Mattfeld claims and
awarded costs to PHH.

[3] All
references to the Wisconsin Statutes are to the 2011-12 version unless
otherwise noted.

[4] Also
participating in the email volley was Tracy Johnson from an “outsourcing
company,” but no further mention of her is made relative to the appeal.

[5] For
this reason, it is unnecessary for us to consider the Mattfelds’ complaint that
the circuit court erroneously exercised its discretion when it failed to
adequately explain why it refused to follow the Mattfelds’ statutory
construction.See Georgina G. v. Terry M.,
184 Wis. 2d 492, 507, 516 N.W.2d 678 (1994) (application of statute to
facts is question of law; hence, “we need not give deference” to circuit court
decision).

A person who receives loan
or escrow payments on behalf of itself or another person shall do all of the
following:

(a) Respond to a
borrower’s inquiry within 15 days after receiving the inquiry.

(b) Consider
that a loan payment by check, or other negotiable or transferable instrument,
is made on the date on which the check or instrument is physically received,
except that the person may charge back an uncollected loan payment.

[7] Scott
Mattfeld’s complaint alleged only a failure of PHH to respond within fifteen
days of the January 5, 2009 request.Thus, although the Mattfelds refer to requests sent on
January 22 and 27, 2009, there is no further argument for us to review with
respect to those requests.

[8]Wisconsin Stat. § 138.052 has
unusual numbering:in sequence, the
subsections include (7), (7e), (7m), (7s), and (8).Subsection 138.052(7e) details a lender’s
obligations when it takes “adverse action” on a loan application and sets out
what information must be in a written disclosure prior to accepting an
application, and § 138.052(8) identifies certain types of loans to which
§ 138.052 does not apply.

[10] We
therefore have no need to review “lemon law” jurisprudence as an interpretive
aid.

[11] We
cannot help but note this inconsistency in the Mattfelds’ pleading.

[12] We
observe that the Mattfelds may have been fated to experience delays from the
outset:they made their first inquiry
for the payoff amount on December 28, 2008, and expected to close on January 8,
2009.However, under the statute, a
response from PHH was not even required until January 12, 2009.This deadline is even later if counted from
the January 5 request.